July 29, 2005

Will Roberts Overturn Affirmative Action?

The issue where it looks clearest that the O'Connor-Roberts swap will make a difference is one we haven't heard very much about -- affirmative action.

Not that O'Connor left much of affirmative action viable, as I've argued, but is it accurate that Roberts will be worse? Maybe. As a political actor in the legislative branch, he clearly would vote against it. Said Roberts in legal memos:

Perhaps the clearest example of the self-serving nature of the report is found in the dismissal of failures in affirmative action as caused not by inherent flaws but 'sabotage.' "There is no recognition of the obvious reason for failure: the affirmative action program required the recruiting of inadequately prepared candidates.

But would he deny Congress or the states the power to enact a bad law he disagrees with. On that, I think he is probably more likely to. Maybe he would follow his political instincts and justify it on the perverted basis of the current conservative Court majority doctrines.

But maybe his professed belief in judicial restraint would win through. And the same memos that show his conservative streak show a belief in strong power by the legislative branch to determine proper policy under the 14th Amendment, even when the courts might disagree. And note, on affirmative action, the courts have been far worse than the legislative branches at the state and federal level.

The Supreme Court has been rather dismissive of Congress's power under Section 5 of the 14th Amendment to determine that discrimination needs legislative action. The Court, including O'Connor, dismissed that Congressional power when it struck down the Religious Freedom Restoration Act in City of Boerne v. Flores, struck down the Violence Against Women Act, and struck down the application of the Age Discrimation in Employment Act as applied to state employees.

But if you look as his old memos, Roberts actually has a robust view of the power of Congress under its Section 5 powers, powers to which he thinks the Court should defer -- unlike O'Connor for example. For Roberts, this meant that Congress could end busing by legislation if it felt it was ineffective, but the legal point was the strength of those Congressional powers under the Constitution.

It's worth stepping back and understanding that the political branches have been far more supportive of affirmative action than the judicial brnach. It was judicial activism in its truest sense which undercut it year after year. If Roberts is actuallyt committed to judicial restraint, he could end up being far beter than O'Connor on it and similar issues where the Court might be looking to strike down progressive legislation.

Of course, and this is the caveat as always, Roberts could be lying or a Manchurian candidate who will disregard every principle he ever articulated. But I don't take it as a given he will be worse than O'Connor in a number of areas where she was a judicial activist striking down progressive legislation.